Tree Lane Apartments, LLC v. Pamela Windom

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 27, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2019AP803 Cir. Ct. Nos. 2018SC9273
2018SC9279
2019AP810
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

TREE LANE APARTMENTS, LLC,

PLAINTIFF-RESPONDENT,

V.

KIMBERLY GADDIS,

DEFENDANT-APPELLANT.

TREE LANE APARTMENTS, LLC,

PLAINTIFF-RESPONDENT,

V.

PAMELA WINDOM,

DEFENDANT-APPELLANT.
Nos. 2019AP803
2019AP810

APPEALS from orders of the circuit court for Dane County:
WILLIAM E. HANRAHAN and PETER C. ANDERSON, Judges. Affirmed.

Before Blanchard, Kloppenburg, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM.1 Tree Lane Apartments, LLC (“the landlord”)
issued 5-day notices to terminate the tenancies of Kimberly Gaddis and Pamela
Windom, both based on alleged nonpayment of rent. The landlord followed the
notices with eviction actions. Gaddis contested her eviction in the circuit court, but
the landlord prevailed. Windom stipulated with the landlord that she would move
out and thereby avoided entry of a judgment of eviction. About 60 days later, after
both former tenants had vacated their units, each moved for relief from judgment
under WIS. STAT. § 806.07(1). Each former tenant argued, for the first time, that
she was entitled to relief because the landlord did not have a right to evict her using
a 5-day notice, in light of the fact that the lease was “void and unenforceable” under
WIS. STAT. § 704.44(10).2 The circuit court judge in each case denied the motion
for relief and both former tenants appeal. We reject one set of arguments advanced
by the former tenants based on forfeiture and reject the remaining arguments

1
By order dated November 14, 2019, this court granted a motion for a three-judge panel
pursuant to WIS. STAT. RULE 809.41(1) (2017-18). These appeals were consolidated for purposes
of disposition on February 6, 2020 pursuant to WIS. STAT. RULE 809.10(3) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
“[A] residential rental agreement is void and unenforceable if it” “[a]llows the landlord
to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the
rental agreement does not include [the notice of domestic abuse protections against eviction]
required under [WIS. STAT. §] 704.14.” WIS. STAT. § 704.44(10).

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because the circuit court judges did not erroneously exercise their broad
discretionary authority in denying the respective motions under § 806.07(1)(h).

BACKGROUND

¶2 In November 2018, the landlord, represented by counsel, filed small
claims summonses and complaints for eviction against Gaddis and Windom, each
of whom was then residing in a unit owned by the landlord. The sole ground for
eviction alleged in each case was failure to pay rent.

¶3 In December 2018, a court commissioner dismissed the eviction
against Windom, pro se, based on a stipulation. The parties stipulated that Windom
would vacate her unit by January 6, 2019, and that, if she did not, the landlord “shall
be entitled to a judgment of eviction without further notice to” Windom. Windom
did not raise with the court commissioner or any circuit court judge any issue related
to WIS. STAT. § 704.44(10).

¶4 Gaddis, also pro se, contested her eviction. Like Windom, Gaddis did
not raise any issue related to WIS. STAT. § 704.44(10). The circuit court determined
that Gaddis had breached the rental agreement and entered a judgment of eviction
in January 2019.

¶5 In February 2019, the same attorney filed nearly identical motions for
relief on behalf of each former tenant. The ground for relief did not involve the
alleged failure to pay; the former tenants do not dispute that they failed to pay the
rent that the landlord claimed was due. The basis for the motion was that the former
tenants were entitled to relief under WIS. STAT. § 806.07(1)(h) because their leases
had been “void and unenforceable” under WIS. STAT. § 704.44(10), in light of the
following facts: (1) the leases contained a provision that allowed the landlord to

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terminate tenancy based on a crime committed in relation to the property, but (2) the
leases did not contain notices of domestic abuse protections as required by WIS.
STAT. § 704.14.3 The motions for relief contended that, because the leases were
void and unenforceable, the landlord had been “barred from terminating [the former
tenants’] tenancy” for violation of any lease provision, including the provisions
requiring payment of rent.

¶6 The circuit court judge in each case, the Honorable William E.
Hanrahan in the eviction against Gaddis and the Honorable Peter C. Anderson in
the eviction against Windom, denied the motions for relief for reasons that we
discuss below.

DISCUSSION

¶7 This court will not reverse a circuit court order denying or granting
relief under WIS. STAT. § 806.07 absent an erroneous exercise of discretion. Mullen
v. Coolong, 153 Wis. 2d 401, 406-07, 451 N.W.2d 412 (1990) (citing Shuput v.
Lauer, 109 Wis. 2d 164, 177, 325 N.W.2d 321 (1982)). “The term ‘discretion’
contemplates a process of reasoning which depends on facts that are in the record
or reasonably derived by inference from the record and yields a conclusion based
on logic and founded on proper legal standards.” Mullen, 153 Wis. 2d at 406. The
purpose of § 806.07(1) is “to achieve a balance between the competing values of
finality and fairness in the resolution of disputes,” and must be construed “to achieve

3
More precisely, the former tenants cited multiple paragraphs of WIS. STAT. § 806.07(1)
in their motions to the circuit courts. However, when questioned at oral argument on appeal they
failed to develop arguments, supported by any references in the briefing, based on such other
grounds for relief as “mistake” (§ 806.07(1)(a)) or “fraud” (§ 806.07(1)(c)) Instead, they
effectively acknowledged that their argument boils down to the following: the courts should have
relieved them from a judgment or stipulation under § 806.07(1)(h), for “other reason[s] justifying
relief.”

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this balance.” Mullen, 153 Wis. 2d at 407 (citing Graczyk, The New Wisconsin
Rules of Civil Procedure, Chapters 805-807, 59 MARQ. L. REV. 671, 727 (1976),
and State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 541, 363 N.W.2d 419 (1985)).

¶8 We divide our analysis into two parts, based on the nature of the relief
now requested. We first address Gaddis’s current argument that Judge Hanrahan
should have vacated Gaddis’s judgment of eviction and Windom’s current argument
that Judge Anderson should have vacated Windom’s stipulation. Then we turn to
the former tenants’ shared argument that the circuit courts should have, in some
manner, reinstated the tenancies of the former tenants.4

Vacation Of Judgment/Stipulation

¶9 There are inconsistent references in the former tenants’ briefs on
appeal and statements of their shared attorney at oral argument on this point, but we
understand both former tenants to now make the following argument. The circuit
courts should have reopened these eviction actions for the purpose of vacating the
eviction judgment (Gaddis) or stipulation (Windom) that resolved the respective
actions, even if the courts did not order their “reinstatements” as tenants. Assuming
without deciding that the former tenants have developed this argument on appeal,
we reject it without reaching the merits based on the failure of the former tenants to
preserve it in the circuit court.

¶10 Failure to make a timely assertion of a right in the circuit court
constitutes forfeiture of the right on appeal. State v. Ndina, 2009 WI 21, ¶¶29-30
315 Wis. 2d 653, 761 N.W.2d 612. The many rationales for this forfeiture rule have

4
Because we affirm on other grounds, we need not address the landlord’s arguments that
the former tenants’ motions to reopen were untimely under WIS. STAT. §§ 799.445 or 799.29(2),
or both.

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Nos. 2019AP803
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been extensively and repeatedly discussed in case law and it is sufficient to observe
that those rationales are well served by application to the forfeiture doctrine here.
See State v. Counihan, 2020 WI 12, ¶¶25-27, __ Wis. 2d ___, __ N.W.2d ___.

¶11 In the Gaddis eviction, the motion for relief filed in the circuit court
did not ask the court to vacate the judgment of eviction. At most, she might have
implied this specific request for relief. Instead, her focus was a request that the court
“reinstate her tenancy.” And, at the hearing on the motion, in response to repeated
questioning by the circuit court about the nature of the relief sought and the bases
for the relief, counsel for Gaddis consistently made arguments under various legal
theories in favor of requiring the landlord to allow Gaddis to move back into the
apartment building and to extend a new lease to her, and counsel made no clear
request to vacate the judgment of eviction.

¶12 All of this was also true at the motion for relief stage in Windom’s
case.5 At that stage, the Windom case was litigated on her behalf by the same
attorney as the Gaddis case, relying on the same arguments.

¶13 Moreover, we received an answer of no when we specifically asked
counsel for the former tenants at oral argument if they had requested that the circuit
court judges consider the relief of reopening the cases for the purpose of vacating
the judgment or the stipulation. Further, counsel for the former tenants replied no,

5
In a representative argument, counsel for Windom explained to Judge Anderson that
Windom “would like to return to her housing with her children and get a lease that complies with
the law like the other tenants are going to be receiving very soon and work with [the landlord] to
determine if there’s money owed and what that would be.” It is true that counsel for Windom also
made an isolated reference to the concept of “reliev[ing] the defendant from the stipulation,” but
even this reference was wrapped into an accompanying request that Windom “be able to return,”
apparently meaning move back into the apartment building. Requests for relief need to be made
with recognizable specificity and clarity, and here there was no clear specific request to vacate the
judgment and stipulation without reinstating the tenancies.

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and later conceded that the focus of the former tenants in the circuit court was on
“reinstating” them as tenants in the apartment building.

¶14 In sum, the landlord and the circuit court were not placed on notice of
claims, at least not with sufficient clarity and consistency, that the judgment
(Gaddis) or the stipulation (Windom) should have been vacated in reopened
proceedings and, therefore, the former tenants failed to provide fair opportunities
for the parties and the court to squarely address this as an issue. Accordingly,
reversal on this ground would be inappropriate in each case.

Reinstatement Of Tenancies

¶15 The former tenants argue that the circuit court judges erroneously
exercised their broad discretionary authority in denying the respective motions
under WIS. STAT. § 806.07(1)(h). We reject this argument because the former
tenants failed to provide the circuit courts with any practical explanation or relevant
evidence to support an argument that it would be equitable to grant the specific relief
of “reinstatement” of their tenancies, requiring the landlord to allow them to move
into units of the apartment building, given the obvious intervening circumstances of
their departures from the units, the passage of time, and the absence of any lease or
other agreement between the landlord and either former tenant.

¶16 Given our basis to affirm, we do not need to address a number of other
issues addressed by the parties, such as whether the undisputed fact that the leases
were “void and unenforceable” under WIS. STAT. § 704.44(10) rendered the former
tenants here tenants at will or instead periodic tenants. Bearing in mind our
deferential standard of review, our attention is instead on the failure of the former
tenants to provide the circuit court judges with clear explanations, including

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citations to any relevant evidence, as to how tenancy “reinstatement” could or
should work.

¶17 Courts are to apply WIS. STAT. § 806.07(1)(h) “only when the
circumstances are such that the court’s conscience demands that justice be done,”
which occurs in “only the most egregious circumstances,” in order to promote “the
balance between finality of judgments and fair judgments.” Allstate Ins. Co. v.
Brunswick Corp., 2007 WI App 221, ¶17, 305 Wis. 2d 400, 740 N.W.2d 888. This
catch-all provision “gives the [circuit] court broad discretionary authority and
invokes the pure equity power of the court.” Mullen, 153 Wis. 2d at 407 (citing
M.L.B., 122 Wis. 2d at 544-45).

¶18 As our supreme court has explained:

We may sustain a circuit court’s decision to deny relief under
[WIS. STAT. §] 806.07, even though the circuit court’s
reasoning may have been erroneous or inadequately
expressed. “Whether the ground assigned by the trial judge
... is correct is immaterial if, in fact, the ruling is correct and
the record reveals a factual underpinning that would support
the proper findings.”

Schauer v. DeNeveu Homeowner’s Ass’n, Inc., 194 Wis. 2d 62, 71, 533 N.W.2d
470 (1995) (citations omitted).

¶19 The following nonexhaustive, five-factor test is applicable, and we
emphasize one factor that gave the circuit court judges pause and implicitly weighed
in their analysis against the relief that the former tenants sought:

1. Whether the judgment was the result of the
conscientious, deliberate, well-informed choice of the
claimant;

2. Whether the claimant received the effective
assistance of counsel;

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3. Whether relief is sought from a judgment to
which there has been no judicial consideration of the merits
and the interest of deciding the particular case on the merits
outweighs the finality of judgments;

4. Whether there is a meritorious defense to the
claim; and

5. Whether there are intervening circumstances
making it inequitable to grant relief.

See Brunswick Corp., 305 Wis. 2d 400, ¶7 (emphasis added) (quoted source
omitted).6

¶20 When we asked counsel for the former tenants at oral argument
whether the circuit courts were presented with information sufficient to understand
the mechanics of potential “reinstatement” relief, approximately two months after
the former tenants were no longer in possession of their units, counsel effectively
responded that the courts lacked information on this topic because no evidence was
presented on the topic. However, to the extent evidence was needed, it was the
former tenants’ burden to provide the evidence. That is, they effectively concede
that they made an insufficient effort to present the circuit courts with pertinent
evidence on this unclear topic of “reinstatement.”

¶21 The circuit court judges noted gaps in the tenants’ positions on this
topic, particularly Judge Hanrahan. The court asked questions that included the
following:

6
At oral argument, the former tenants asked for the first time that, instead of outright
reversal, we remand to the circuit court judges to expressly exercise their discretion based on case
law setting forth the nonexhaustive list of factors to consider under WIS. STAT. § 806.07(1)(h). The
request for a remand for the court to expressly exercise its discretion comes far too late in the
litigation of these cases. During oral argument, the former tenants acknowledged that they failed
to include these factors in their briefing to the circuit court, and likewise failed to ask the circuit
court to consider them. We discuss this request no further.

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So let’s say I do what [counsel for Gaddis is] asking
and put [Gaddis] back as a tenant at will at the apartment.
Then what would the rental amount be? What would the
terms be?

….

[Is the landlord] required to offer her a lease?

….

I’m sorry. I’m having a hard time wrapping my head
around this. So she goes back [into a unit], and she really
has no lease, and [the landlord is] required to enter into some
sort of lease?

The court also raised the issue of whether some current tenant might have to be
relocated or vacated to make room for Gaddis. Counsel for Gaddis attempted to
provide answers to these questions, but counsel was generally not able to point to
pertinent legal principles or relevant evidence on any point raised.

¶22 It is true that Judge Hanrahan based denial in part on the following
findings: Gaddis and the landlord had entered into an agreement that Gaddis would
pay rent for living in the unit; Gaddis failed to pay rent pursuant to this agreement;
and “[n]otice was given [by the landlord], as it would be if she had not had a lease
from the beginning, and she was asked to vacate and failed to do that.” But these
findings are not inconsistent with the additional comments of the court that Gaddis
had failed to provide anything resembling a coherent legal and mechanical roadmap
for the landlord to “reinstate” Gaddis in a unit.

¶23 Judge Anderson was less pointed in raising concerns about how
Windom could or would be placed in a unit, but the court made some observations
that can be interpreted as running along similar lines. The court asked counsel for
Windom if she was essentially asking for the rights of a “squatter,” suggesting that
the court had difficulty envisioning Windom’s status as a “reinstated” tenant. The

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court also observed that it seemed illogical for Windom to argue, “The lease is void
and, therefore, I get to move back in.” (Emphasis added.) The court observed that
it was presented with the difficult question of, “if there is no lease, what do we do?”

¶24 Like Judge Hanrahan, Judge Anderson based denial in part on the
concept that invalidity of the lease did not mean that Windom “did not have an
obligation to pay rent,” or “that eviction for not paying rent was not authorized.”
As with Judge Hanrahan’s findings, however, these findings are consistent with the
more general “I get to move back in” problem raised by the court.

¶25 Based on this record, we interpret both circuit courts to have denied
the motions for relief based in part because there was a significant missing piece of
the puzzle for the relief sought, namely, intervening circumstances making it
inequitable to grant “reinstatement,” and this point is not seriously disputed by the
former tenants.

¶26 In the alternative, under Schauer, even if we were to construe the
record to conclude that the circuit courts did not place significant weight on
problematic intervening circumstances, denial of the motions on this ground would
have been plainly proper, given the lack of evidentiary development on this topic
and the former tenants’ exclusive pursuit of “reinstatement” as a remedy.

¶27 For all of these reasons, we affirm the orders of the circuit court.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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